AZOFA v. ALEXANDRA LO, ESQ, TORTURE CLAIMS APPEAL BOARD

HCAL 783/2018

[2019] HKCFI 1685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 783 of 2018

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The 1^st applicant (“the applicant”) is a 29-year-old national of Bangladesh who arrived in Hong Kong on 30 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 30 November 2016 or within 14 days of its early termination.  On 13 March 2015 her contract was prematurely terminated but she did not depart Hong Kong, and on 2 April 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband.  She was subsequently released on recognizance pending the determination of her claim, and on 6 November 2016 she gave birth to her daughter out of wedlock with another man in Hong Kong, and for whom she also raised a non-refoulement claim on the same basis as hers.

2.  The applicant was born and raised in Village Gosinga, Gazipur, Dhaka, Bangladesh.  After leaving school she married her husband and moved to live with him in the same village.  Soon she discovered that her husband was a drug addict who would abuse illegal drugs and alcohol at home with his friends, and when she objected to his such behavior, he would become abusive to her by slapping and hitting her even in front of his friends until he was restrained by his parents.

3.  The abuses would gradually become more frequent and violent over the years, and when the applicant was unable to divorce her husband without his consent, she decided to leave him in mid-2006 by moving to Dhaka where she worked as a tailor to earn her own living and to support their son who was being looked after by her parents.

4.  In 2011 the applicant heard that her husband with the help of some members of the political party Awami League (“AL”) was looking for her and had vowed to drag her back to his home, she therefore fled to Daripara where she worked as a domestic helper, and in 2014 when she saw an advertisement for foreign domestic helper in Hong Kong, she therefore applied and obtained an employment contract, and on 29 November 2014 she departed Bangladesh for Hong Kong to commence her employment.

5.  However, when her employment was terminated on 13 March 2015, she did not leave Hong Kong as she was afraid of being found by her husband upon her return to Bangladesh,she therefore raised her non-refoulement claim with the Immigration Department, for which she completed a Non-refoulement Claim Form (“NCF”) on 19 March 2016 and attended screening interview before the Immigration with legal representation from the Duty Lawyer Service (“DLS”).

6.  Whilst being released on recognizance pending determination of her claim, the applicant formed a relationship with another Bangladeshi man believed to be also a non-refoulement claimant, and with whom she subsequently married in accordance with some religious ceremonies.  On 6 November 2016 she gave birth to a daughter, for whom she also raised a non-refoulement claim on the same basis as hers by completing a NCF on her behalf on 14 June 2017, and which was assessed jointly with her own claim.

7.  By a Notice of Decision dated 30 June 2017 the Director of Immigration (“the Director”) rejected their claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that her husband would have any real intention to harm or kill her upon her return to Bangladesh after all these years,that it was a domestic dispute between them without any official involvement that state or police protection would be available to the applicant and her daughter if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 156 million people spread across a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young woman with work experience to move with her daughter to other part of Bangladesh away from her home district in large cities such as Dhaka where she had lived and worked for years before and where it would be difficult if not impossible for her husband to locate her or her daughter.

9.  On 14 July 2017 the applicant filed an appeal for herself and her daughter to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 28 February 2018 before the Board during which she gave evidence for herself and her daughter and answered questions put to her by the adjudicator for the Board.  On 12 April 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted that the applicant may have been abused by her husband in Bangladesh but that was many years ago and given their lengthy separation since and in the absence of any reliable evidence that he still posted any threats to her, and having found various inconsistencies and contradictions in her evidence about her husband’s influence, it was not satisfied that she in the circumstances had any well-founded fear of being harmed or killed by her husband, and that in any event state/police protection would be available to her and her daughter, as well as reasonable internal relocation alternatives that it would not be unduly harsh for the applicant to relocate with her daughter to other parts of Bangladesh such as Dhaka where the applicant had lived and worked for years before and where it would be remote for her husband to be able to locate her that their claim failed on all applicable grounds. 

11.  On 4 May 2018 the applicant filed her Form 86 for herself and her daughter for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for their intended challenge:

  (1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

  (2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

  (3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

  (4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

  (5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

  (6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

  (7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

  (8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

12.  At the hearing the applicant applied and was allowed to delete her daughter from her application, and I shall therefore consider her application just based on her own case by referring to her proposed grounds as set out above.

13.  These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was the legal representation from her assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them, or that they are reasonably arguable for her intended challenge.

14.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton argument and other documents all of which were in English and thereby given her insufficient time to prepare for the appeal.

15.  Even if it is true that the hearing bundle indeed came to the applicant late as alleged,and she never provided any documentary proof such as the date of the covering letter which accompanied the bundle, I note that most of the documents including her NCF, record of screening interview and the Director’s decision should be well familiar to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance and interpretation, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for the appeal. As such I do not find anything amiss arising from the hearing bundle for the applicant in her appeal before the Board, and that this complaint is not reasonably arguable either.  

16.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  As noted above I do not find any of the applicant’s bare assertions to have any basis or merits, and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1